Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J227576. William Jefferson Powell IV, Judge.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont, and Gil Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster J.
I
INTRODUCTION
On June 8, 2009, the San Bernardino District Attorney filed a petition under Welfare and Institutions Code section 602, alleging that the minor J.M. (hereafter minor) (1) resisted, delayed, or obstructed a peace officer, in violation of Penal Code section 148, subdivision (a)(1) (count 1); and (2) committed vandalism with damage under $400, in violation of Penal Code section 594, subdivision (b)(2)(A).
On January 14, 2010, after a contested jurisdictional hearing, the juvenile court found both allegations to be true.
On February 18, 2010, at the dispositional hearing, the court declared minor a ward of the court, placed him on probation for six months at home, and ordered him to make restitution to the victims.
On February 19, 2010, minor filed a timely notice of appeal, and an amended notice of appeal on March 3, 2010.
On appeal, minor requests that we independently review the sealed record of the juvenile court’s in camera Pitchess review of two officers’ personnel files. The People do not oppose this request. Since there is no record on appeal of what documents were reviewed by the juvenile court, we ordered augmentation of the record. Thereafter, we reviewed the information and records provided, as well as the sealed transcript of the in camera Pitchess motion hearing. We conclude the juvenile court did not abuse its discretion in ruling that none of the records or information was discoverable.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
II
A detailed statement of facts is necessary to aid this court in reviewing the sealed documents presented at the Pitchess hearing to determine whether any or all of the documents should have been made available to minor.
A. Prosecution Evidence
On April 29, 2009, at approximately 5:00 p.m., police officer Adam Clabaugh was dispatched to a residence on Marigold Avenue in Fontana to investigate a report of a handgun being fired into the ground. The person reporting the incident stated that the two suspects, Gomer Manco and Brant Swink, were driving a blue Ford Taurus. Manco was described as a 40-year-old male, and Swink was described as younger, about 19 years old. Officer Clabaugh located the Taurus at or near the Marigold residence, but did not find the suspects. Manco’s relatives stated that Manco lived at another residence on Grace Street in Fontana, and drove an F-150 pickup truck.
Officer Clabaugh, accompanied by Officers Porch and Hunt, went to the Grace Street residence. Officer Clabaugh considered that location to be a high-crime area. The officers did not have a search warrant for the residence, or an arrest warrant. On arrival, Officer Clabaugh saw the pickup truck and a red Honda; both were unlocked and the windows were down. The officer knocked on the door but received no answer. He could see into the house and saw a cup with ice cubes, which made him believe that someone might be inside.
Officer Porch talked to a neighbor who stated that minor was at a house up the street. Officer Clabaugh asked Officer Porch to go to the house up the street to ask minor about the whereabouts of his father and if he had a key to the house. Officer Clabaugh stayed at the Grace Street residence because he believed that the person who had fired a gun might still be inside.
According to Officer Porch, he went to the house up the street and asked an unidentified person for minor. The person went inside and minor came out. The officer asked minor if he lived at the Grace Street residence. When minor said yes, the officer asked minor to walk back to that residence to help the police find his father. Minor stated that he did not think his father was there but agreed to accompany the officer.
As they walked back, Officer Porch explained to minor that they were investigating a report of a gun being fired; minor stated he did not know where his father was. The officer was comfortable with minor because minor was cooperative. However, as the officer asked more questions about minor’s father and whether minor had a key to the house, minor became upset and slightly hostile. Minor’s responses changed from “I don’t know, man, ” to “Why are you [] questioning me? Why are you at my house? What the fuck is going on?” Minor had a cast on his leg so when they arrived at the residence, he sat down on the cement stoop in front of the house. Officer Hunt was around the corner so Officer Porch left to go talk to him.
According to Officer Clabaugh, minor was agitated from the time he walked up with Officer Porch. Minor was cursing and yelling that he knew his rights and the police could not talk to him. Officer Clabaugh told minor to calm down six or seven times. Minor was yelling to three or four neighbors who were across the street; the officer believed minor was trying to incite them to get involved. The neighbors were becoming upset. Officers Clabaugh and Porch asked minor to sit down for the officers’ safety. Both agreed that minor was detained at that point.
Minor continued to yell at the neighbors as he was sitting. At one point, he stood up with clenched fists, and cursed again. Thereafter, Officer Clabaugh decided to put minor in the back of the patrol car to calm down. The officer walked minor to the car in a control hold; minor was yelling about police brutality. The neighbors, still agitated, were yelling; they did not come any closer. Officer Clabaugh told minor he was not under arrest and was being detained so he would calm down and not cause any problems. Minor was not handcuffed.
After Officer Porch left Officer Clabaugh, he heard someone yell, “Fuck you.” He then returned to the front of the house and saw that Officer Clabaugh had minor in a wrist lock and was walking him toward the patrol car. As Officer Clabaugh placed minor in the car, a woman from the house where Officer Porch initially contacted minor came running up and asked what was going on. The officer stopped her when she was about 25 feet from the patrol car. As Officer Porch was talking to her, Aaron Stinson walked up and the officer asked Stinson where he was going. Stinson said he was going to his mother’s house so the officer continued talking to the woman.
When Stinson started to walk toward the patrol car, Officer Porch again asked Stinson what he was doing; Officer Clabaugh was no longer at the car. Receiving no answer, the officer told Stinson to get away from the car but Stinson continued moving toward it. Stinson said he was going to talk to minor. The officer told him to step away and walk to the rear of the car. Porch asked Stinson for identification. As Stinson was handing the identification to the officer, he grabbed the officer’s hand. Officer Porch pushed Stinson into the trunk of the car. They both fell and the officer punched Stinson in the face three or four times. While Stinson was lying on the ground, the officer punched him two or three more times and then cuffed him.
In the patrol car, minor became more agitated as he watched the altercation between the officer and Stinson. Minor was yelling, “What are you doing to my friend?” Minor then kicked out the rear window of the driver’s side and came out of the vehicle feet first. Minor’s fists were clenched and he was upset. Officer Clabaugh believed minor was challenging him to fight. The officer told minor to get on the ground so the officer could arrest minor for damaging the vehicle. As Officer Clabaugh approached to about five feet, minor continued to hold up his clenched fists and to curse. The officer sprayed pepper spray in minor’s face. Minor ran and the officer chased him.
Officer Porch was putting Stinson in the patrol car while this was happening. When he turned around, he saw Officer Clabaugh chasing minor and joined in. Both officers were yelling at minor to stop. Minor ran up to some trash cans and pushed one toward Officer Porch. The officer drew his Taser and shot minor once. Minor fell face forward. Officer Porch handcuffed him. Paramedics were called because minor’s breathing was labored; he was taken to a hospital.
During the incident, the neighbors were yelling, screaming, and running toward the scene. Both officers denied threatening to shoot any of them, but Officer Clabaugh told them that if they did not stay back, they would be arrested for interfering.
After minor was released from the hospital, Officer Porch read him his rights under Miranda v. Arizona (1966) 384 U.S. 436. Minor waived his rights. Minor stated that he was angry at seeing how his friend Stinson was being treated. He apologized for kicking out the window and said he was so upset that he did not remember anything that happened after that. Minor also apologized when Officer Porch mentioned pushing the trash can toward the officer. Minor stated that he knew the officers were just doing their job.
When photographs of minor were shown at the hearing, Officer Clabaugh testified that the injuries to the left side of minor’s face must have been inflicted when he fell to the ground. The officer denied that he or Officer Porch ever hit or kicked minor’s left eye or hit him in the back of the head.
B. Defense Evidence
On the day of the incident, minor was having dinner at Cheryl Aleksich’s house because he did not have keys to his own house. He was often at her house.
Officers Porch and Hung came to Aleksich’s house and politely asked minor to come to his father’s house and answer some questions. Minor put his crutches against a truck as he went out the gate. Officer Porch had his hand on minor’s shoulder; minor felt he had no choice but to go with the officers.
On their way to the Grace Street residence, the officers were friendly and asked why minor had a cast on his leg; minor described his motorcycle accident.
When they got to the Grace Street residence, minor sat down on the porch. The officers asked minor whether he had a key to the house. Minor stated he did not have a key and because the residence was his father’s house, minor could not let them in. Minor stated that Officer Clabaugh became upset. From her house, Aleksich could hear the police yelling, “Let us in the house, ” and minor stating that he did not have a key. When minor stood up to relieve a cramp in his leg, Officer Clabaugh told him to sit back down. Minor complied.
Officer Clabaugh asked again whether minor would let them in. When minor stated that he could not, the officer called him a “punk kid.” The officers continued to ask minor to let them in and searched him to find the key. Minor admitted that he was upset at that point, but denied being angry or cursing at the police.
When minor stood up again, Officer Clabaugh put minor in a wrist lock and walked him across the yard. The neighbors were present, but minor denied calling to them. Aleksich, however, remembered hearing minor calling her name. Aleksich was shocked at the officer’s conduct and started yelling, “Why are you taking him? He is just a kid.”
Minor asked the officers why they were questioning him when he was not a suspect. Officer Clabaugh kept hitting the back of minor’s head as he walked him to the car. The officer stated that he would detain minor until they found minor’s father.
Minor was detained in the back of the patrol car when Stinson walked up. Stinson went up to the window of the car and asked if he should call minor’s mother. As Stinson was walking away, Officer Porch asked for his identification. As Stinson tried to hand it to him, the officer put Stinson in a headlock, put him on the ground, and started punching him. Minor never saw Stinson grab the officer’s hand. Aleksich heard the officer say, “Did you touch my arm, punk?” just before hitting him.
Officer Porch kept hitting Stinson until Officer Clabaugh came to assist. Minor tapped on the window and was yelling. Then minor kicked out the window. Minor said he did it because, when he saw the police beating Stinson, minor did not know what else they would do. Minor was afraid to be alone with the officers and did not want to get hit again.
After minor got out of the car, he yelled, “What are you doing to him? Why are you guys doing this to him? He wasn’t doing nothing [sic] wrong.” Officer Clabaugh came running at minor, but did not say anything. The officer then sprayed minor in the face. Unable to see, minor tried to run away as he was wiping his face. As he ran around the car, Officer Porch ran toward him. Minor grabbed one of the trash cans and used it to block the officer. The officer then shot minor twice with his Taser. Minor could not remember much that happened after that, including making a statement or apologizing.
Aleksich estimated that by the time minor was shot with the Taser, there were at least eight officers at the scene because one of the neighbors had called 911. After minor was shot with a Taser, another officer came up and hit minor in the head with a baton or flashlight. She begged them to stop, but the officers hit minor again and shot him with the Taser a second time. Aleksich and her daughter, as well as neighbors Dianna Hennessey and Cory McDermott, saw the police hit and kick minor after he was shot. Aleksich and Hennessey saw minor shot twice; McDermott only saw minor shot once.
Aleksich begged the officers to stop and said she wanted to help minor. One of the officers turned around and said, “You take one more step, bitch, and I will shot [sic] you next.”
III
ANALYSIS
On appeal, minor requests this court to review independently the sealed transcript of the Pitchess motion and the documents produced during the hearing to determine whether the juvenile court abused its discretion in ruling that there were no discoverable materials to be produced to the defense.
A criminal defendant has a limited right to discovery of peace officer personnel records based on the fundamental proposition that a defendant is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information. (City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1141.) An accused may compel discovery by demonstrating that the requested information will facilitate the ascertainment of facts and a fair trial. (Ibid.)
In order to obtain discovery of the personnel records of a peace officer, the moving party must submit affidavits showing good cause for such discovery and setting out the materiality of the information requested. (Evid. Code, § 1043, subd. (b).) Under Pitchess, a defendant demonstrates good cause for discovery when the defendant shows the information requested is (1) relevant to a defense of self-defense, (2) necessary in that the defendant could not readily obtain the information through his own efforts, and (3) described with adequate specificity to preclude the possibility that the defendant was engaging in a fishing expedition. (Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 537-538.) Evidence Code section 1045 provides that if production is warranted, the trial court must examine the personnel files in camera to determine whether they contain any relevant information.
On August 18, 2009, defense counsel filed a Pitchess motion requesting the production of personnel records of Officers Clabaugh and Porch, including all complaints filed against each officer and the results of investigations of the complaints and/or any disciplinary actions taken against the officers. In support of the claim that there was good cause for in camera review, defense counsel stated that the requested materials would support a defense to the allegations that the officers detained and arrested minor without legal grounds, and used excessive or unreasonable force; and would prove character traits of the officers for purposes of cross-examination and impeachment. At a hearing on September 22, 2009, the juvenile court denied the motion without prejudice.
On October 15, 2009, defense counsel filed a renewed Pitchess motion and provided more details as to the alleged police misconduct claims; such facts were recounted in our statement of facts. On November 19, 2009, the juvenile court granted the motion and conducted an in camera review of the materials. The court found no discoverable material and ordered the records sealed.
Because minor was not present at the records review hearing, he requests this court to conduct an independent review of the sealed transcript of the hearing and the records produced to determine whether any error occurred. The People do not oppose this request.
First, we have reviewed the sealed transcript and conclude that the trial court properly conducted a Pitchess document review hearing. The records produced during the in camera hearing, however, were not included as part of the record on appeal. Although the sealed transcript refers to the documents reviewed and the court explains why various documents do not fall within Pitchess, the documents are not sufficiently identified and described for this court to determine whether the produced documents were discoverable.
Because the record does not include copies of the documents produced or sufficiently describe each document, under People v. Mooc (2001) 26 Cal.4th 1216 (Mooc), we ordered augmentation of the record for the purpose of creating a record from which this court could determine whether the documents reviewed by the trial court are discoverable. (Id. at p. 1231.)
In Mooc, supra, 26 Cal.4th 1216, as here, the trial court examined the records provided by the custodian of the requested records and declined to order disclosure. The Court of Appeal found the appellate record did not contain the records the trial court had examined, so it directed the police department to submit such records directly to the appellate court. Believing the police department and city attorney had improperly censored the files given to the trial court, the Court of Appeal ordered the custodian of the records to deliver directly to the appellate court the entire personnel file of the officer in question. After examining the entire file, the appellate court concluded that discoverable records had not been given to the trial court, thus preventing the trial court from exercising its discretion under Pitchess. Accordingly, it reversed the defendant’s conviction and remanded with directions that the trial court conduct a new Pitchess hearing and, if the hearing revealed discoverable information, the trial court was to disclose such before retrying the case. (Mooc, at pp. 1222-1225.)
The Supreme Court in Mooc, supra, 26 Cal.4th 1216, concluded that the Court of Appeal erred in directing the custodian to turn over the officer’s complete personnel file directly to the appellate court. (Id. at pp. 1230-1231.) The appropriate remedy was to remand the case to the trial court with directions to augment the record to reflect the documents it reviewed. (Id. at p. 1231.) The Mooc court stated that the uncertainty in the record “justified remanding the case to the trial court with directions to hold a hearing to augment the record with the evidence the trial court had considered in chambers when it ruled on the Pitchess motion.” (Mooc, supra, 26 Cal.4that p. 1231.) However, in Mooc, the Supreme Court ultimately concluded that the additional delay inherent in causing the matter to be remanded to the trial court to settle the record as to what it had reviewed seemed “imprudent, if unnecessary.” Accordingly, the Supreme Court simply reviewed the personnel file itself and concluded it contained nothing disclosable. (Id. at p. 1232.)
In Mooc, the court described the proper procedures to be followed by the trial court when, as in this case, the trial court concludes that good cause exists for the trial court to review an officer’s personnel file in response to a Pitchess motion: “When a trial court concludes a defendant’s Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer’s personnel files, the custodian of the records is obligated to bring to the trial court all ‘potentially relevant’ documents to permit the trial court to examine them for itself. [Citation.] A law enforcement officer’s personnel record will commonly contain many documents that would, in the normal case, be irrelevant to a Pitchess motion, including those describing marital status and identifying family members, employment applications, letters of recommendation, promotion records, and health records. (See Pen. Code, § 832.8.) Documents clearly irrelevant to a defendant’s Pitchess request need not be presented to the trial court for in camera review. But if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the locus of decisionmaking is to be the trial court, not the prosecution or the custodian of records. The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant’s Pitchess motion. A court reporter should be present to document the custodian’s statements, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record. [Citation.]” (Mooc, supra, 26 Cal.4th at pp. 1228-1229.) The sealed reporter’s transcript shows that these procedures were followed in the instant case.
The Mooc court further stated that during the Pitchess motion hearing, “The trial court should then make a record of what documents it examined before ruling on the Pitchess motion. Such a record will permit future appellate review. If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party’s ability to obtain appellate review of the trial court’s decision, whether to disclose or not to disclose, would be nonexistent. Of course, to protect the officer’s privacy, the examination of documents and questioning of the custodian should be done in camera in accordance with the requirements of Evidence Code section 915, and the transcript of the in camera hearing and all copies of the documents should be sealed. (See People v. Samayoa (1997) 15 Cal.4th 795, 825 [after ruling on the Pitchess motion, ‘[t]he magistrate ordered that all remaining materials be copied and sealed’].)” (Mooc, supra, 26 Cal.4that pp. 1229-1230, fn. omitted.)
Here, minor has demonstrated the materiality of the information requested in his Pitchess motion. Both parties in this case agree that review by this court of the records reviewed by the juvenile court in camera is appropriate. Due to this court’s inability to determine what records were produced or whether the trial court appropriately denied disclosure of the records, this court ordered augmentation of the record to enable this court to review those records produced in the trial court in camera and determine whether the trial court abused its discretion in not ordering production of any of the records or information.
Based on our review of the sealed reporter’s transcript of the in camera Pitchess motion proceeding and the sealed augmented record of the documents reviewed during the trial court hearing, we conclude the trial court properly exercised its discretion in excluding from disclosure the officers’ personnel records. (People v. Samayoa, supra, 15 Cal.4th at p. 827.)
IV
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst Acting P.J., King J.